Investigating President Trump’s nomination for the U.S. Supreme Court, Judge Brett Kavanaugh brought back memories of law school and a nettlesome problem I observed in America. Here’s how I came to believe a Justice Kavanaugh will be good for America.

As part of being on law review all members write a piece called a “note”. It’s not an “article” since it’s a piece being written by a law student, not a lawyer. The note is submitted to the editors. The best notes (in the judgment of the editors) are selected for publication in the law school’s journal.

A Failed Law School Note

The “note” I wrote was not selected for publication. It was on a subject certainly not on the cutting edge of the law. My note was about what I saw as a great problem, the abdication of Congress to make laws as commanded by the Constitution.

The subject was the “non-delegation” doctrine. The non-delegation doctrine stands for the proposition that Congress cannot give the power to legislate to anyone else, specifically the executive branch. The doctrine comes from Article I of the Constitution: “All legislative powers herein granted shall be vested in a Congress of the United States. . . .”

Before 1935 and FDR’s New Deal, the U.S. Supreme Court had enforced the “non-delegation” doctrine and limited congressional attempts to give law making authority to the executive. After 1935 the Court largely allowed Congress to go on a binge of creating the alphabet soup of federal agencies that now make “rules” for just about everything in life. My note decried this development and basically said there was no constitutional authority for how we were being governed.

As this development had become part of American life, my note got no traction and was never published. It’s dusty and moldy in the basement now.

“The Framers of the Constitution viewed the separation of powers as the great safeguard of liberty in the new National Government. To protect liberty, the Constitution divides power among the three branches of the National Government. The Constitution vests Congress with the legislative power. The Constitution vests the President with the executive power, including the responsibility to “take Care that the Laws be faithfully executed.” The Constitution vests the Judiciary with the judicial power, including the power in appropriate cases to determine whether the Executive has acted consistently with the Constitution and statutes. Under the Constitution’s separation of powers, Congress makes the laws, and the Executive implements and enforces the laws. The Executive Branch does not possess a general, free-standing authority to issue binding legal rules.”

A Judge and An Educator

Judge Kavanaugh goes on to explain, in the simplest of terms, why the legislative authority belongs with Congress and why the FCC did not have the authority to simply make up “net neutrality” rules. While his opinion works within the confines of how the law has developed since 1935, it was clear he was driven by a commitment to the Constitution. In the end, he said it was up to Congress to pass laws, not executive agencies.

Judge Kavanaugh so reminded me of what I wanted to say over 30 years ago. He said it so much better and impressed me with his devotion to the written Constitution.

As Justice Kavanaugh, I am confident he will do his best to have Congress pass laws, the Executive execute them and the judiciary apply them. I am equally confident that along the way he will educate Americans on how that system is the best yet devised to act as the great safeguard of our liberty.

What Others Have To Say

Judge Kavanaugh has a tremendous body of work, and admittedly his clear constitutional commitment to separation of powers has drawn my approbation. Here’s a sampling of what others have to say: